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Sunday, October 14, 2007

What does and doesn't come with the territory

Stevan Harnad, Re-Use Rights Already Come With the (Green) OA Territory: Judicet Lector, Open Access Archivangelism, October 14, 2007. 

Summary:  Not one [Peter Suber], not two [Robert Kiley], but three [Peter Murray-Rust] of my valued OA comrades-at-arms have so far publicly registered their disagreement with my position on "re-use" rights. Here is my summary of the points at issue: Judicet Lector.

Individual re-use capabilities: If a document's full-text is freely accessible online (OA), that means any individual can (1) access it, (2) read it, (3) download it, (4) store it (for personal use), (5) print it off (for personal use), (6) "data-mine" it and (7) re-use the results of the data-mining in further research publications (but they may not re-publish or re-sell the full-text itself: "derivative works" must instead link to its URL).

Robotic harvestability: In addition, (8*) robotic harvesters like Google can harvest and index the freely available Web-based text, making it boolean full-text searchable. (9*) Robotic data-miners can also harvest the full-text, machine-analyse it, and re-use the results for research purposes (but they may not re-publish or re-sell the full-text itself: "derivative works" must instead link to its URL).

OA is about access and use, not re-publication or re-sale: Online re-publishing or re-sale rights were never part of OA, any more than on-paper re-publishing or re-sale rights were; nor do they need to be, because of all the capabilities that come with the free online territory.

The Green OA territory: Capabilities (1)-(9*) all come automatically with the Green OA territory. Hence there is no need to pay for Gold OA to have these capabilities, nor any need for further re-use rights beyond those already inherent in Green OA. Sixty-two percent of journals today already endorse immediate Green OA self-archiving.

Gold OA includes Green OA: If you do elect to pay a publisher for Gold OA, you also get the right to deposit your refereed final draft ["postprint"] in your own OA Institutional Repository. Hence even here there is no need for further "re-use rights." (If you pay for "Gold OA" without also getting this Green OA, you have done something exceedingly foolish.)

"Harvesting rights"? If authors self-archive their articles on the web, accessible freely (Green OA), then robots like Google can and do harvest and data-mine them, and have been doing so without exception or challenge, for years now.

What about Gray publishers? With Gray publishers (i.e., neither Green nor Gold) the interim solution today is (i) Immediate Deposit (IDOA) Mandates, (ii) Closed Access deposit for Gray articles, and (iii) reliance on the semi-automatized "Email Eprint Request" ("Fair Use") Button to provide for individual researchers' usage and re-usage needs for these Gray articles during any Closed Access embargo interval (but note that the Fair Use Button cannot provide for robotic harvesting and data-mining of these embargoed full-texts).

Extra Gold OA rights? For those articles published in the 38% of journals that are still non-Green today, I think that to rely on (i)-(iii) above is a far better interim strategy for attaining 100% OA globally than to pay hybrid Gray/Gold publishers for Gold OA today. But regardless of whether you agree that (i)-(iii) is the better strategy in such cases, what is not at issue either way is whether Gold OA itself requires or provides "re-use" rights over and above those capabilities already inherent in Green OA -- hence whether in paying for Gold OA one is indeed paying for something further that is needed for research, yet not already vouchsafed by Green OA.

Comments.  I hope no one minds if I reprint my comments from June 12, 2007, in which I responded in detail to a very similar post by Stevan:

  • Stevan isn't saying that OA doesn't or shouldn't remove permission barriers.  He's saying that removing price barriers (making work accessible online free of charge) already does most or all of the work of removing permission barriers and therefore that no extra steps are needed.
  • The chief problem with this view is the law.  If a work is online without a special license or permission statement, then either it stands or appears to stand under an all-rights-reserved copyright.  The only assured rights for users are those collected under fair use or fair dealing.  These rights are far fewer and less adequate than OA contemplates, and in any case the boundaries of fair use and fair dealing are vague and contestable.
  • This legal problem leads to a practical problem:  conscientious users will feel obliged to err on the side of asking permission and sometimes even paying permission fees (hurdles that OA is designed to remove) or to err on the side of non-use (further damaging research and scholarship).  Either that, or conscientious users will feel pressure to become less conscientious.  This may be happening, but it cannot be a strategy for a movement which claims that its central practices are lawful.
  • This doesn't mean that articles in OA repositories without special licenses or permission statements may not be read or used.  It means that users have access free of charge (a significant breakthrough) but are limited to fair use. 

Update.  I've often pointed out that the BBB definition of OA requires the removal of permission barriers, not just the removal of price barriers, and I stand by that.  Klaus Graf has just collected some of my past statements to this effect along with some of his own.  (Thanks, Klaus.)